Sunday, March 21, 2010

Timothy Noah over at Slate understands that "A lot of people are scratching their heads about the executive order Rep. Bart Stupak extracted from President Obama as a condition of supporting health care reform. "It's not clear the executive order changes anything," writes the New Republic's Jon Cohn. I'd have to agree. So why did Stupak hold out for it?

Here's my best guess: Stupak was holding out not for language that merely reaffirmed what the Senate bill already says, but for language that de-linked the fate of health reform's abortion ban from the fate of the Hyde amendment. As I've explained before, the Hyde amendment is not a permanent ban on government (actually, just Health and Human Services) funding of abortions. It's a ban that gets attached to appropriations bills, and therefore must be renewed year after year. In the Senate bill, the ban on government funding of abortions through the new health insurance exchanges is dependent on the Hyde amendment's renewal. The word "abortion" is defined "based on the law [governing HHS appropriations] as in effect as of the date that is six months before the beginning of the plan year involved." (This is on Page 119.) If Congress fails to renew the Hyde amendment in any given year, the abortion ban in the health care reform bill will vanish.

Earlier today Kathryn Jean Lopez reported on National Review Online that she'd been leaked a draft of the executive order as of last night. She scorned it as "meaningless," but it contained some important language that didn't make it into the final version. The draft said: "The Executive Order directs that the Hyde language [italics mine] found in sections 507 and 508 of the Labor HHH Appropriations Bill shall apply to the HR 3590. The final version said: "The Act maintains current Hyde Amendment restrictions [italics mine] governing abortion policy and extends those restrictions to the newly-created health insurance exchanges." What's the difference between language and current restrictions? Language denotes the wording as distinct from the conditions under which that wording is applied. Current restrictions, on the other hand, refers to the conditions. The first renders the Hyde amendment immortal (at least until a followup executive order undoes it). The second leaves it conditioned on renewal in the HHS appropriation. Once the Hyde amendment restrictions were no longer current, the insurance exchanges would be free to use federal funds to pay for abortions.

Here's what I suspect. As of yesterday, the White House was willing to promise Stupak an open-ended ban on abortion funding in the exchanges. But today, either because of blowback from pro-choicers in Congress or because Stupak lost some leverage as the healh reform bill acquired more votes, it was not. So a basically meaningless executive order was issued to help Stupak save face.